Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            LOIS H. BOYD,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 890207
 
            WESTERN HOME,  :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            BITUMINOUS INSURANCE COMPANY, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed January 25, 1991, is affirmed and is adopted as the 
 
            final agency action in this case, with the following 
 
            additional analysis.
 
            Claimant was 67 years old at the time of the hearing.  The 
 
            approach of later years when it can be anticipated that 
 
            under normal circumstances a worker would be retiring is, 
 
            without some clear indication to the contrary, a factor 
 
            which can be considered in determining the loss of earning 
 
            capacity or industrial disability which is causally related 
 
            to the injury. Becke v. Turner-Busch, Inc., 34 Report of the 
 
            Iowa Industrial Commissioner 34 (Appeal Decision 1979); 
 
            Merrill v. Eaton Corp., Appeal Decision, May 9, 1990; 
 
            Barkdoll v. American Freight System, Inc., Appeal Decision, 
 
            June 28, 1988.  Claimant has an industrial disability of 15 
 
            percent. 
 
            Claimant and defendants stipulated that claimant's healing 
 
            period for the right knee condition ended April 23, 1990.  
 
            Claimant urges that it began on January 20, 1990, when 
 
            treatment for the condition began.  Defendants urge that the 
 
            healing period did not begin until the date of surgery, 
 
            March 2, 1990.  
 
            Iowa Code section 85.34(1), dealing with healing period, 
 
            states that the healing period begins at the date of injury.  
 
            In this case, however, claimant did not begin to experience 
 
            symptoms in her right knee until January of 1990, some 18 
 
            months after her injury.  Claimant was not working at this 
 
            time.  
 
            The dispute between the parties is whether claimant is 
 
            entitled to healing period benefits for her right knee 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            injury for the period of time between her initiation of 
 
            treatment on January 2, 1990, and the knee surgery on March 
 
            2, 1990.  Claimant was clearly disabled from work during the 
 
            period from her surgery on March 2, 1990 to the stipulated 
 
            end of the healing period, April 23, 1990.
 
            Although claimant experienced right knee symptoms during the 
 
            period January 2, 1990 to March 2, 1990, there is no clear 
 
            indication as to whether the condition prevented claimant 
 
            from working.  Claimant was not working during this time 
 
            period, and thus there is no physician's release from work.  
 
            A fair reading of Iowa Code section 85.34(1) indicates that 
 
            the section contemplates a period of time when the employee 
 
            is off work due to the injury, beginning on the date of the 
 
            injury, and ending when the employee returns to work, or it 
 
            is medically indicated that the employee is capable of 
 
            returning to work or that further improvement is not 
 
            anticipated.  The clear fact that healing period ends when 
 
            an employee works again or can work again indicates that 
 
            healing period contemplates an inability to work, not just 
 
            the existence of work-related symptoms.  Conversely, a 
 
            period of time when claimant is experiencing work-related 
 
            symptoms but nevertheless is physically capable of working 
 
            cannot be termed healing period under section 85.34(1).  
 
            Claimant bears the burden of proof of entitlement to 
 
            benefits.  Claimant is not entitled to healing period 
 
            benefits for the period January 2, 1990 to March 2, 1990.
 
            Claimant also sought penalty benefits under Iowa Code 
 
            section 86.13.  Defendants did not acknowledge the causal 
 
            connection between claimant's right knee condition and her 
 
            work injury until the hearing.  Arnold Delbridge, M.D., had 
 
            opined that such a causal connection existed as early as 
 
            July 2, 1990.  However, Dr. Delbridge's statements on causal 
 
            connection were qualified, and claimant did have a 
 
            preexisting condition that accounted for some of claimant's 
 
            right knee condition.  
 
            The standard for determining whether a penalty is 
 
            appropriate is whether claimant's claim is fairly debatable.  
 
            Where claimant asserts a claim that is fairly debatable, 
 
            defendants do not act unreasonably in the denial of payment.  
 
            Seydel v. U of I Physical Plant, Appeal Decision, November 
 
            1, 1989.  In this case, even though Dr. Delbridge's opinion 
 
            was the only medical evidence, the causal connection of 
 
            claimant's right knee condition was still fairly debatable 
 
            in light of claimant's preexisting right knee condition and 
 
            Dr. Delbridge's description of his diagnosis as a "tough 
 
            call."  Penalty benefits are not appropriate. 
 
            Defendants shall pay the costs of the appeal, including the 
 
            preparation of the appeal transcript. 
 
            Signed and filed this ____ day of June, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                               CLAIR R. CRAMER
 
                       ACTING INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Thomas L. Staack
 
            Mr. J. Scott Bayne
 
            Attorneys at Law
 
            3151 Brockway Rd.
 
            PO Box 810
 
            Waterloo, Iowa 50704
 
            
 
            Mr. J. Richard Johnson
 
            Attorney at Law
 
            1715 First Avenue SE
 
            PO Box 607
 
            Cedar Rapids, Iowa 52406
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      1802 - 5-4000.2
 
                      Filed June 26, 1991
 
                      MDM
 
                      CLAIR R. CRAMER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            LOIS H. BOYD,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 890207
 
            WESTERN HOME,  :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :       D E C I S I O N
 
            and       :
 
                      :
 
            BITUMINOUS INSURANCE COMPANY, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            1802
 
            Claimant began to experience symptoms from injury on January 
 
            2, 1990.  Claimant eventually underwent surgery for the 
 
            condition on March 2, 1990.  The parties stipulated that the 
 
            healing period ended April 23, 1990.  Claimant was awarded 
 
            healing period for the time from the surgery to the end of 
 
            the healing period, but was denied healing period benefits 
 
            for the time period from the onset of symptoms until 
 
            surgery.  Claimant was off work during this period for other 
 
            reasons.  Claimant was not restricted from working by her 
 
            physician during this period.  Held that healing period 
 
            contemplates an inability to work, not just symptoms. 
 
            
 
            5-4000.2
 
            Penalty benefits denied where the causal connection between 
 
            claimant's condition and her injury was opined by one 
 
            physician only, and where that opinion was termed a "tough 
 
            call", and where claimant had a preexisting injury in the 
 
            same member.  Compensability was fairly debatable.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LOIS H. BOYD,                                           x
 
              Claiman ,  F~ L
 
         
 
         vs.                jhbln~5 ~~~~
 
         WESTERN HOME,    MM[RM1 s1RNoe~        File No. 890207
 
         
 
         
 
              Employer,
 
                                              D E C I 5 I 0 N
 
         and
 
         
 
         BITUMINOUS INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Lois H. Boyd 
 
         as a result of injuries to her left shoulder and right knee which 
 
         occurred on Tune 22, 1988.  Defendants accepted compensability for 
 
         the injury, paid weekly benefits and some medical expenses.
 
         
 
              The case was heard and fully submitted at Waterloo, Iowa, on 
 
         December 10, 1990.  The record in the proceeding consists of joint 
 
         exhibits Jl through Jl8, claimant's exhibits 1 through 14, 
 
         defendants' exhibits X through FF, testimony of claimant, Raymond 
 
         Harrington, Geneive Erne and Terri Goodell.
 
         
 
                                      ISSUES
 
         
 
              The issues for determination at the time of hearing were as 
 
         follows:
 
         
 
              1.  Penalty under Iowa Code section 86.13
 
         
 
              2.  Healing period or temporary total disability.
 
         
 
              3.  Iowa Code section 85.27 benefits.
 
         
 
              4.  Credit under Iowa Code section 85.38(2).
 
         
 
              5.  Commencement date for permanent partial disability.
 
         
 
              6.  Odd-lot doctrine.
 
         
 
              7.  Industrial disability.
 
         
 
         
 
 
 
 
 
 
 
 
 
         BOYD V. WESTERN HOME
 
         Page 2
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Having considered all the evidence received the following 
 
         findings of fact are made:
 
         
 
              Claimant, now age 67, started working for employer, Western 
 
         Home, on December 16, 1971.  On June 22, 1988, while working as a 
 
         dietary aide for employer, she sustained an injury to her left 
 
         shoulder and right knee.  Claimant was carrying a tray into a 
 
         walk-in cooler and encountered a pan of potatoes on the floor. 
 
         Claimant evidently lost her balance and when catching herself 
 
         jammed her left shoulder and right lower extremity.
 
         
 
              Claimant's left shoulder was very painful immdediately after 
 
         the injury.  Claimant attempted a brief period of physical therapy 
 
         for the shoulder.  This conservative treatment failed and surgery 
 
         was performed by Arnold Delbridge, M.D.  A long period of 
 
         convalescence followed.  Claimant described her visits to Dr. 
 
         Delbridge as short with little exchange of information.  The 
 
         doctor evidently would ask claimant if she wanted to go back to 
 
         work with little more said.
 
         
 
              After healing, claimant was found to have a permanent partial 
 
         impairment to the body as a whole of 11 percent caused by the 
 
         shoulder injury (exhibit J3, pages 23 & 24).
 
         
 
              Claimant's injury resulted in a severe loss of use of her 
 
         left upper extremity.  Her work restrictions are no lifting over 
 
         five pounds and no use of the left upper extremity over shoulder 
 
         level (ex. Jl5, p. 23).  Claimant was unable to lift her left arm 
 
         to shoulder height at the time of hearing.
 
         
 
              Claimant sought treatment for her right leg pain immediately 
 
         after the injury.  However, the medical records do not reveal any 
 
         complaints for a long period of time with respect to her right 
 
         knee.  'Claimant's right knee became symptomatic again after her 
 
         shoulder healing period had ended.  Claimant testified that her 
 
         severe shoulder injury had masked her knee pain during that time 
 
         period.  She alleged that the knee had always been painful, but 
 
         the shoulder was more serious.
 
         
 
              Dr. Delbridge performed surgery on the right knee.  On June 
 
         25, 1990, he opined that claimant sustained a 12 percent 
 
         impairment of the right lower extremity.  However, only 5 percent 
 
         permanent partial impairment was causally connected to the June 
 
         22, 1988 injury according to Dr. Delbridge.
 
         
 
              Claimant's work restrictions for the knee were not spelled 
 
         out in certain terms.  It appeared that claimant was allowed to 
 
         walk until pain resulted.  At the time of hearing, claimant 
 
         testified that she currently walks three to four miles per week 
 
         for exercise.
 
         
 
         
 
 
 
 
 
 
 
 
 
         BOYD V. WESTERN HOME
 
         Page 3
 
         
 
              Claimant alleged that defendants should be penalized under 
 
         Iowa Code section 86.13 for their failure to pay benefits for the 
 
         right knee injury.  It is found that defendants had reasonable 
 
         cause to delay such payment.  First, claimant's initial complaints 
 
         were diagnosed as pain to her calf as opposed to the knee.  
 
         Second, claimant's knee was asymptomatic for over a year. Finally, 
 
         Dr. Delbridge apportioned the knee impairment which indicates part 
 
         of the knee problem arose from other causes not related to the 
 
         June 22, 1988 injury.
 
         
 
              Healing period benefits were also disputed.  The parties did 
 
         stipulate that claimant was disabled starting June 22, 1988 
 
         through July 10, 1989 as a result of the June 22, 1988 left 
 
         shoulder injury.
 
         
 
              The healing period in dispute concerns the right knee injury.  
 
         The left shoulder healing period was established by stipulation of 
 
         the parties.  Claimant alleges that benefits are owed starting 
 
         January 20, 1990 through April 23, 1990.  While defendants contend 
 
         they are due starting March 2, 1990 through April 23, 1990.
 
         
 
              Defendants' position is accepted.  It is true that treatment 
 
         started on January 20, 1990 (ex. J3, p. 3).  However, Dr. 
 
         Delbridge did not make any statement that claimant should be 
 
         authorized off work after that date.  It is not until the surgery 
 
         of March 2, 1990, that it can be determined that claimant was 
 
         unable to work as a result of the June 22, 1988 right knee injury 
 
         (ex. J3, p. 26).  It is found that claimant is entitled to 
 
         additional healing period benefits starting March 2, 1990 through 
 
         April 23, 1990.
 
         
 
              Claimant's entitlement to Iowa code section 85.27 benefits 
 
         was also disputed.  It is found that claimant has proven by a 
 
         preponderance of the evidence that she is entitled to payment for 
 
         all of her medical and mileage expenses incurred as a result of 
 
         the left shoulder and right knee injuries.
 
         
 
              Defendants contend that some of the medical expenses should 
 
         be subject to apportionment.  It is true that the knee impairment 
 
         was apportioned.  However, the same rationale cannot be applied to 
 
         the medical expenses.  Defendants are responsible for an 
 
         aggravation of a preexisting condition.
 
         
 
              Claimant's diagnosis of a degenerative joint change in the 
 
         knee implies a preexisting condition as opposed to an intervening 
 
         cause.  The work injury aggravated the preexisting condition. 
 
         Therefore, defendants are responsible for medical expenses related 
 
         to the aggravation.  It is found that defendants have failed to 
 
         reveal any credible evidence demonstrating that the medical 
 
         benefits should be apportioned.
 
         
 
              Credit under Iowa Code section 85.38(2) was alleged as an 
 

 
         
 
 
 
 
 
 
 
 
 
         issue.  The evidence presented revealing payments made under
 
         BOYD V. WESTERN HOME
 
         Page 4
 
         
 
         employer's group health plan was uncontradicted.  It is found that 
 
         defendants are entitled to take such credit for medical benefits 
 
         paid under defendant employer's company sponsored group health 
 
         plan.
 
         
 
              Odd-lot was raised as an issue by claimant.  This case 
 
         requires a showing that claimant is not employable in the general 
 
         labor market.  After such a showing the burden of proving 
 
         employability shifts to the defendants.  In this case, the 
 
         testimony of claimant revealed that no search for employment was 
 
         made by claimant.  Therefore, claimant has failed to bring forth 
 
         sufficient evidence to invoke the odd-lot doctrine.
 
         
 
              The commencement date for payment of permanent partial 
 
         disability is found to be July Il, 1989 as that is the termination 
 
         date for healing period benefits.  Such benefits shall be paid 
 
         intermittently before and after the right knee healing period.
 
         
 
              The final issue to be discussed concerns claimant's 
 
         entitlement to industrial disability.
 
         
 
              Terri Goodell, personnel manager for Western Home, testified 
 
         both live and by deposition.  Much of her testimony was redundant 
 
         and cumulative when considered with exhibit Jl4.
 
         
 
              Goodell was a credible witness.  She testified that employer 
 
         has a light duty program which encourages the re-employment of 
 
         workers who are injured on the job.  Goodell testified that she 
 
         wanted to contact claimant so as to make an effort to re-employ. 
 
         Upon calling an insurance carrier representative she was informed 
 
         that the case was in litigation.  Goodell was instructed to make 
 
         an offer of employment in writing to be delivered through the 
 
         parties' respective counsel (ex. J6, p. 1).
 
         
 
              It is found that employer made a good faith effort to 
 
         reemploy claimant at a modified or light duty position.  This 
 
         employer is commended for its efforts to accommodate injured 
 
         employees.
 
         
 
              However, it does not follow that all such jobs offered by 
 
         Western Home were appropriate.  To the contrary, some of the jobs 
 
         offered would have required claimant to drive to work two or three 
 
         times per day so as to obtain pay and benefits equal to what she 
 
         enjoyed prior to June 22, 1988.  It appears that Goodell's efforts 
 
         to re-employ turned into a trial strategy shortly after her 
 
         initial efforts.
 
         
 
              Claimant made no attempt to return to Western Home so as to 
 
         see if she was physically capable of performing the jobs offered. 
 
         Claimant stated numerous times in her deposition that she did not 
 
         want to go back to work.  Her failure to apply for jobs after her 
 

 
         
 
 
 
 
 
 
 
 
 
         healing period ended also reveals a lack of motivation to return
 
         
 
         
 
 
 
 
 
 
 
 
 
         BOYD V. WESTERN HOME
 
         Page 5
 
         
 
         to work.  It is found that claimant was not motivated to return to 
 
         work primarily because she wanted to retire.
 
         
 
              Claimant testified that if she had not been injured she would 
 
         probably have worked until age 70.
 
         
 
              Claimant is a high school graduate.  She had little post high 
 
         school education other than completion of a six-month business 
 
         course.
 
         
 
              Claimant's work history started when she was widowed in 1966.  
 
         After that she sold World Books, Avon and worked in a clothing 
 
         store.  In 1971, she went to work for Western Home and continued 
 
         there until her injury of June 22, 1988.  Sustaining such a long 
 
         period of employment with one employer is commendable.
 
         
 
              Factors which reduce industrial disability include employers' 
 
         good faith efforts to offer work, claimant's lack of motivation to 
 
         work and claimant's retirement age.
 
         
 
              Factors which increase industrial disability include 
 
         claimant's severe work restrictions, 13 percent permanent partial 
 
         impairment rating, claimant's good work history and limited 
 
         education.
 
         
 
              It is understood by the undersigned that a 67-year old 
 
         claimant with only one good arm would generally not be motivated 
 
         to return to work.  It is also understood that jobs for a 67-year 
 
         old claimant with one good arm are few.  However, claimant's 
 
         retirement age reveals a very limited loss of earning capacity.
 
         
 
              In conclusion, the very severe work restrictions imposed by 
 
         Dr. Delbridge along with the other factors mentioned support an 
 
         award of industrial disability.  It is found that claimant has 
 
         sustained a 15 percent industrial disability.
 
         
 
              It should also be noted that the leg injury is compensated 
 
         industrially since it arose out of a body as a whole injury. 
 
         Claimant does not receive an extra 5 percent permanent partial 
 
         disability of the lower extremity.
 
         
 
              Nor should defendants receive any apportionment for the 
 
         preexisting knee impairment.  Claimant was working a full duty 
 
         manual labor job at the time of injury which kept her on her feet 
 
         most of the time.  Prior to the injury, she had no work 
 
         restrictions with respect to the right lower extremity. Therefore, 
 
         claimant had no preexisting industrial disability.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Iowa Code section 86.13 states:
 
         
 
         
 
 
 
 
 
 
 
 
 
         BOYD V. WESTEAl~ HOME
 
         Page 6
 
         
 
              If a delay in commencement or termination of benefits occurs 
 
              without reasonable or probable cause or excuse, the 
 
              industrial commissioner shall award benefits in addition to 
 
              those benefits payable under this chapter, or chapters 85, 
 
              85A, or 85B, up to fifty percent of the amount of benefits 
 
              that were unreasonably delayed or denied.
 
         
 
              Claimant has failed to prove entitlement to penalty benefits 
 
         under Iowa Code section 86.13.
 
         
 
              Section 85.34(l), Code of Iowa, provides that healing period 
 
         benefits are payable to an injured worker who has suffered 
 
         permanent partial disability until (1) he has returned to work; 
 
         (2) is medically capable of returning to substantially similar 
 
         employment; or (3) has achieved maximum medical recovery.  The 
 
         industrial commissioner has recognized that healing period 
 
         benefits can be interrupted or intermittent.  Willis v. Lehiqh 
 
         Portland Cement Company, Vol. 2-I, State of Iowa Industrial 
 
         Commissioner Decisions, 485 (1984).
 
         
 
              The end of the healing period occurs at the time when the 
 
         physicians indicate that no further improvement is forthcoming. It 
 
         is not determined by hindsight looking back to find the point at 
 
         which recovery ceased.  Thomas v. William Knudson & Son. Inc., 394 
 
         N.W.2d 124, 126 (Iowa App. 1984); Armstronq Tire & Rubber Co.
 
         v. Kubli, 312 N.W.2d 60 (Iowa App. 1981).
 
         
 
              Claimant has proven entitlement to an intermittent healing 
 
         period starting June 22, 1988 through July 10, 1989 and March 2, 
 
         1990 through April 23, 1990.
 
         
 
              The right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory. The statute conferring this right can also fix the 
 
         amount of compensation to be paid for different specific injuries, 
 
         and the employee is not entitled to compensation except as 
 
         provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 268 
 
         N.W. 598 (1936)
 
         
 
              "Claimant is not entitled to reimbursement for medical bills 
 
         unless he shows that he paid them from his own funds." See Caylor 
 
         v. Employers Mut. Cas. Co., 337 N.W.2d 890 (Iowa App. 1983)
 
         
 
              Our supreme court has stated many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting 
 
         condition.  Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 
 
         N.W. 35 (1934).  See also Auxier v. Woodward State Hosp. Sch., 266 
 
         N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 N.W.2d 
 
         731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 
 
         (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963); Yeaqer v. Firestone Tire & Rubber Co., 253 BOYD 
 
         V. WESTERN HOME
 

 
         
 
 
 
 
 
 
 
 
 
         Page 7
 
         
 
         Iowa 369, 112 N.W.2d 299 (1961); Ziealer v. United States Gypsum 
 
         Co., 252 Iowa 613, 106 N.W.2d 591 (1960).
 
         
 
              The empl.oyer, for all injuries compensable under chapter 85 
 
         or chapter 85A, shall furnish reasonable surgical, medical, 
 
         dental, osteopathic, chiropractic, podiatric, physical 
 
         rehabilitation, nursing, ambulance and hospital services and 
 
         supplies; therefore, and shall allow reasonable necessary 
 
         transportation expenses incurred fro such services.  Iowa Code 
 
         section 85.27.
 
         
 
              Claimant has proven entitlement to Iowa Code section 85.27 
 
         benefits causally connected to the knee and shoulder injury as 
 
         outlined in the opinion, including mileage expenses.
 
         
 
              Furthermore, defendants have proven entitlement to a credit 
 
         for benefits paid under employer's group plan pursuant to Iowa 
 
         Code section 85.38(2).
 
         
 
              Iowa Code section 85.34(2) provides that compensation for 
 
         permanent partial disability shall begin at the termination of the 
 
         healing period.  Iowa Code section 85.34(2) (u) provides that 
 
         compensation for a nonscheduled or body as a whole injury shall be 
 
         paid in relation to 500 weeks that the disability bears to the 
 
         body as a whole.
 
         
 
              The commencement date for permanent partial disability is 
 
         found to be July 11, 1989 and said benefits shall be paid 
 
         intermittently.
 
         
 
              Under the odd-lot doctrine, which was formally adopted by the 
 
         Iowa Supreme Court in Guyton, ~a, a worker becomes an odd-lot 
 
         employee when an injury makes the worker incapable of obtaining 
 
         employment in any well-known branch of the labor market.  An 
 
         odd-lot worker is thus totally disabled if the only services the 
 
         worker can perform are so limited in quality, dependability, or 
 
         quantity that a reasonably stable market for them does not exist.  
 
         Id., citing Lee v. Minneapolis Street Railway Company, 230 
 
         Minn.3l5, 320, 41 N.W.2d 433, 436 (1950). The rule of odd-lot 
 
         allocates the burden of production of evidence.  If the evidence 
 
         of degree of obvious physical impairment, coupled with other facts 
 
         such as claimant's mental capacity, education, training or age, 
 
         places claimant prima facie in the odd-lot category, the burden 
 
         should be on the employer to show that some kind of suitable work 
 
         is regularly and continuously available to the claimant.  
 
         Certainly in such cases it should not be enough to show that 
 
         claimant is physically capable of performing light work and then 
 
         round out the case for noncompensable by adding a presumption that 
 
         light work is available.  Guyton, 373 N.W.2d at 105.
 
         
 
              When a worker makes a prima facie case of total disability by 
 
         producing substantial evidence that the worker is not employable 
 
         in the competitive labor market, the burden to produce BOYD V. 
 

 
         
 
 
 
 
 
 
 
 
 
         WESTERN HOME
 
         Page 8
 
         
 
         evidence of suitable employment shifts to the employer.  If the 
 
         employer fails to produce such evidence and the trier of fact 
 
         finds the worker falls in the odd-lot category, the worker is 
 
         entitled to a finding of total disability.  Even under the odd-lot 
 
         doctrine, the trier of fact is free to determine the weight and 
 
         credibility of the evidence in determining whether the worker's 
 
         burden of persuasion has been carried.  Only in an exceptional 
 
         case would evidence be sufficiently strong to compel a finding of 
 
         total disability as a matter of law.  Guyton, 373 N.W.2d at 106.  
 
         The court went on to state:
 
         
 
                 The commissioner did not in his analysis address any of 
 
              the other factors to be considered in determining industrial 
 
              disability.  Industrial disability means reduced earning 
 
              capacity.  Bodily impairment is merely one factor in a 
 
              gauging industrial disability.  Other factors include the 
 
              worker's age, intelligence, education, qualifications, 
 
              experience, and the effect of the injury on the worker's 
 
              ability to obtain suitable work.  See Doerfer Division of CCA 
 
              v. Nicol, 359 N.W.2d 428, 438 (Iowa 1984).  When the 
 
              combination of factors precludes the worker from obtaining 
 
              regular employment to earn a living, the worker with only a 
 
              partial functional disability has a total disability. See 
 
              McSpadden v. Biq Ben Coal Co, 288 N.W.2d 181, 192 (Iowa 
 
              1980).
 
         
 
              Claimant has failed to prove by a preponderance of the 
 
         evidence that she is not employable in the competitive labor 
 
         market.  Claimant has failed to prove that she is an odd-lot 
 
         employee.
 
         
 
              Functiozjal impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson, 
 
         255 Iowa 1112, 125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 
 
         253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is to 
 
         loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it is 
 
         not so that a degree of industrial disability is proportionally 
 
         related to a degree of impairment of bodily function.
 
         
 
              Factors to be considered in determining industrial disability 
 
         include the employee's medical condition prior to the BOYD V. 
 

 
         
 
 
 
 
 
 
 
 
 
         WESTERN HOME
 
         Page 9
 
         
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job transfer 
 
         for reasons related to the injury is also relevant. These are 
 
         matters which the finder of fact considers collectively in 
 
         arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc. 
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to draw 
 
         upon prior experience, general and specialized knowledge to make 
 
         the finding with regard to degree of industrial disability. See 
 
         Peterson v. Truck Haven Cafe Inc., (Appeal Decision, February 28, 
 
         1985); Christensen v. Haqen, Inc., (Appeal Decision, March 26, 
 
         1985).
 
         
 
              An employee is not entitled to recover for the results of a 
 
         preexisting injury or disease but can recover for an aggravation 
 
         thereof which resulted in the disability found to exist.  Olson, 
 
         255 Iowa 111?, 125 N.W.2d 251 (1963); Yeaqer, 253 Iowa 369, 112 
 
         N.W.2d 299 (1961); Zieqler, 252 Iowa 613, 106 N.W.2d 591 (1960). 
 
         See also Barz, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist, 218 
 
         Iowa 724, 254 N.W. 35 (1934).
 
         
 
              Also to be considered is the following decision of this 
 
         agency:
 
         
 
                 Although the Iowa Supreme Court has indicated that age is 
 
         a factor to be considered in determining industrial disability, it 
 
         does not indicate what the effect of young age, middle age or 
 
         older age is supposed to be.  Obviously, it is a factor that 
 
         cannot be considered separately but must be considered in 
 
         conjunction with the other factors.  For example, the effects of a 
 
         minor back injury upon a young person with extensive formal 
 
         education would limit the scope of his potential employment-less 
 
         than that of a middle-aged person with no formal education.
 
         
 
         
 
 
 
 
 
 
 
 
 
         BOYD V. WESTERN HOME
 
         page 10
 
         
 
                 How to apply age as a factor when a person is nearing the 
 
              end of his normal working life is a dilemma.  When 
 
              considering the age factor, it is apparent that the scope of 
 
              employment for which claimant is fitted is narrowed simply 
 
              because of the reluctance of employers to initially employ 
 
              persons of advanced years.  Therefore, the advanced age alone 
 
              without the combination of an injury is limiting.  Lack of 
 
              education or at least a showing of diminished educability is 
 
              in and of itself also a limiting factor for entry into many 
 
              fields of employment ...
 
         
 
                 The Michigan Supreme Court has stated regarding 
 
              retirement:
 
         
 
                 Compensation benefits are geared to weekly wage loss.  It 
 
                 is consistent with the concept of tying weekly 
 
                 compensation benefits to weekly wage loss to factor into 
 
                 the benefit program the statistically established 
 
                 generalization that workers, even if not disabled, retire 
 
                 between 60 and 75 and no longer earn weekly wages.  There 
 
                 is no discrimination against disabled workers over 65 in 
 
                 taking into account the wage loss they would 
 
                 "presumptively" suffer due to normal retirement.  Cruz v. 
 
                 Chevrolet Grey Iron Div. of Gen. Motors, 247 N.W.2d 764, 
 
                 775 (Mich. 1976).
 
         
 
              It is held that the approaching of later years when it can be 
 
              anticipated that under normal circumstances a worker would be 
 
              retiring is, without some clear indication to the contrary, a 
 
              factor which can be considered in determining the loss of 
 
              earning capacity or industrial disability which is causally 
 
              related to the injury.
 
         
 
              Christoper B. Becke vs. Turner-Busch. Inc., and American 
 
              Mutual Liability Insurance Company, Thirtyfourth Biennial 
 
              Report 34, 36.
 
         
 
              Upon considering all the material factors, it is found that 
 
         the evidence in this case supports an award of 15 percent 
 
         permanent partial disability which entitles the claimant to 
 
         recover 75 weeks of benefits under Iowa Code section 85.34(2)"u", 
 
         as a result of the left shoulder and right knee injury.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay claimant sixty-two and three-sevenths (62 
 
         3/7) weeks of compensation for healing period at the rate of 
 
         eight-six and 04/100 dollars ($86.04) per week for the periods 
 
         BOYD V. WESTERN HOME
 
         Page 11
 

 
         
 
 
 
 
 
 
 
 
 
         
 
         June 22, 1988 through July 10, 1989 and March 2, 1990 through 
 
         April 23, 1990.
 
         
 
              It is therefore ordered that defendants pay claimant's Iowa 
 
         Code section 85.27 benefits which are causally connected to the 
 
         knee and shoulder injuries, including mileage expenses.
 
         
 
              It is therefore ordered that defendants receive credit under 
 
         Iowa Code section 85.38(2).
 
         
 
              It is therefore ordered the defendants pay claimant 
 
         seventyfive (75) weeks of permanent partial disability at the rate 
 
         of eight-six and 04/100 dollars ($86.04) per week commencing July 
 
         11, 1989.  payments are to be made intermittantly between healing 
 
         periods.
 
         
 
              It is further ordered that defendants pay claimant interest 
 
         pursuant to Iowa Code section 85.30 from the date each weekly 
 
         payment came due until the date of actual payment.
 
         
 
              It is further ordered that defendants shall receive credit 
 
         for benefits previously paid.
 
         
 
              It is further ordered that the costs of this action are 
 
         assessed against defendants pursuant to rule 343 IAC 4.33.
 
         
 
              It is further ordered that defendants file claim activity 
 
         reports as requested by this agency pursuant to rule 343 IAC 3.1.
 
         
 
              Signed and filed this~ay of January, 1991.
 
         
 
         
 
         
 
         
 
                                        'I
 
         
 
                                       MAR N D. MORMANN DEPUTY INDUSTRIAL 
 
                                       COMMISSIDNER
 
         
 
         Copies to:
 
         
 
         Mr. Thomas L. Staack
 
         Mr. J. Scott Bayne
 
         Attorneys at Law
 
         PO Box 810
 
         Waterloo, Iowa 50704
 
         
 
         Mr. J. Richard Johnson
 
         Attorney at Law
 
         PO Box 607
 
         Cedar Rapids, Iowa 52406
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LOIS H. BOYD,
 
         
 
              Claimant,
 
         
 
		         vs.    	   File No. 890207
 
         
 
         WESTERN HOME,		 	 A R B I T R A T I O N
 
         
 
              Employer, 		    D E C I S I O N
 
         
 
                 and
 
         
 
         BITUMINOUS INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
         
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
         This is a proceeding in arbitration brought by Lois H. Boyd as a 
 
         result of injuries to her left shoulder and right knee which 
 
         occurred on June 22, 1988.  Defendants accepted compensability 
 
         for the injury, paid weekly benefits and some medical expenses.
 
         
 
         The case was heard and fully submitted at Waterloo, Iowa, on 
 
         December 10, 1990.  The record in the proceeding consists of 
 
         joint exhibits J1 through J18, claimant's exhibits 1 through 14, 
 
         defendants' exhibits X through FF, testimony of claimant, Raymond 
 
         Harrington, Geneive Erne and Terri Goodell.
 
         
 
                                      ISSUES
 
         
 
         The issues for determination at the time of hearing were as 
 
         follows:
 
         
 
              1. Penalty under Iowa Code section 86.13
 
         
 
              2. Healing period or temporary total disability.
 
         
 
              3. Iowa Code section 85.27 benefits.
 
         
 
              4. Credit under Iowa Code section 85.38(2).
 
         
 
              5. Commencement date for permanent partial disability.
 
         
 
              6. Odd-lot doctrine.
 
         
 
              7. Industrial disability.
 
              
 

 
        
 
         BOYD V. WESTERN HOME
 
         Page 2
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
         Having considered all the evidence received the following 
 
         findings of fact are made:
 
         
 
         Claimant, now age 67, started working for employer, Western Home, 
 
         on December 16, 1971.  On June 22, 1988, while working as a 
 
         dietary aide for employer, she sustained an injury to her left 
 
         shoulder and right knee.  Claimant was carrying a tray into a 
 
         walk-in cooler and encountered a pan of potatoes on the floor. 
 
         Claimant evidently lost her balance and when catching herself 
 
         jammed her left shoulder and right lower extremity.
 
         
 
         Claimant's left shoulder was very painful immediately after the 
 
         injury.  Claimant attempted a brief period of physical therapy 
 
         for the shoulder.  This conservative treatment failed and surgery 
 
         was performed by Arnold Delbridge, M.D.  A long period of 
 
         convalescence followed.  Claimant described her visits to Dr. 
 
         Delbridge as short with little exchange of information.  The 
 
         doctor evidently would ask claimant if she wanted to go back to 
 
         work with little more said.
 
         
 
         After healing, claimant was found to have a permanent partial 
 
         impairment to the body as a whole of 11 percent caused by the 
 
         shoulder injury (exhibit J3, pages 23 & 24).
 
         
 
         Claimant's injury resulted in a severe loss of use of her left 
 
         upper extremity.  Her work restrictions are no lifting over five 
 
         pounds and no use of the left upper extremity over shoulder level 
 
         (ex. J15, p. 23).  Claimant was unable to lift her left arm to 
 
         shoulder height at the time of hearing.
 
         
 
         Claimant sought treatment for her right leg pain immediately 
 
         after the injury.  However, the medical records do not reveal any 
 
         complaints for a long period of time with respect to her right 
 
         knee.  Claimant's right knee became symptomatic again after her 
 
         shoulder healing period had ended.  Claimant testified that her 
 
         severe shoulder injury had masked her knee pain during that time 
 
         period.  She alleged that the knee had always been painful, but 
 
         the shoulder was more serious.
 
         
 
         Dr. Delbridge performed surgery on the right knee.  On June 25, 
 
         1990, he opined that claimant sustained a 12 percent impairment 
 
         of the right lower extremity.  However, only 5 percent permanent 
 
         partial impairment was causally connected to the June 22, 1988 
 
         injury according to Dr. Delbridge.
 
         
 
         Claimant's work restrictions for the knee were not spelled out in 
 
         certain terms.  It appeared that claimant was allowed to walk 
 
         until pain resulted.  At the time of hearing, claimant testified 
 
         that she currently walks three to four miles per week for 
 
         exercise.
 
         
 

 
         
 
 
 
         BOYD V. WESTERN HOME
 
         Page 3
 
         
 
         
 
         Claimant alleged that defendants should be penalized under Iowa 
 
         Code section 86.13 for their failure to pay benefits for the 
 
         right knee injury.  It is found that defendants had reasonable 
 
         cause to delay such payment.  First, claimant's initial 
 
         complaints were diagnosed as pain to her calf as opposed to the 
 
         knee.  Second, claimant's knee was asymptomatic for over a year. 
 
         Finally, Dr. Delbridge apportioned the knee impairment which 
 
         indicates part of the knee problem arose from other causes not 
 
         related to the June 22, 1988 injury.
 
         
 
         Healing period benefits were also disputed.  The parties did 
 
         stipulate that claimant was disabled starting June 22, 1988 
 
         through July 10, 1989 as a result of the June 22, 1988 left 
 
         shoulder injury.
 
         
 
         The healing period in dispute concerns the right knee injury.  
 
         The left shoulder healing period was established by stipulation 
 
         of the parties.  Claimant alleges that benefits are owed starting 
 
         January 20, 1990 through April 23, 1990.  While defendants 
 
         contend they are due starting March 2, 1990 through April 23, 
 
         1990.
 
         
 
         Defendants' position is accepted.  It is true that treatment 
 
         started on January 20, 1990 (ex. J3, p. 3).  However, Dr. 
 
         Delbridge did not make any statement that claimant should be 
 
         authorized off work after that date.  It is not until the surgery 
 
         of March 2, 1990, that it can be determined that claimant was 
 
         unable to work as a result of the June 22, 1988 right knee injury 
 
         (ex. J3, p. 26).  It is found that claimant is entitled to 
 
         additional healing period benefits starting March 2, 1990 through 
 
         April 23, 1990.
 
         
 
         Claimant's entitlement to Iowa code section 85.27 benefits was 
 
         also disputed.  It is found that claimant has proven by a 
 
         preponderance of the evidence that she is entitled to payment for 
 
         all of her medical and mileage expenses incurred as a result of 
 
         the left shoulder and right knee injuries.
 
         
 
         Defendants contend that some of the medical expenses should be 
 
         subject to apportionment.  It is true that the knee impairment 
 
         was apportioned.  However, the same rationale cannot be applied 
 
         to the medical expenses.  Defendants are responsible for an 
 
         aggravation of a preexisting condition.
 
         
 
         Claimant's diagnosis of a degenerative joint change in the knee 
 
         implies a preexisting condition as opposed to an intervening 
 
         cause.  The work injury aggravated the preexisting condition. 
 
         Therefore, defendants are responsible for medical expenses 
 
         related to the aggravation.  It is found that defendants have 
 
         failed to reveal any credible evidence demonstrating that the 
 
         medical benefits should be apportioned.
 
         
 
         Credit under Iowa Code section 85.38(2) was alleged as an issue.  
 
         The evidence presented revealing payments made under
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         BOYD V. WESTERN HOME
 
         Page 4
 
         
 
         
 
         employer's group health plan was uncontradicted.  It is found 
 
         that defendants are entitled to take such credit for medical 
 
         benefits paid under defendant employer's company sponsored group 
 
         health plan.
 
         
 
         Odd-lot was raised as an issue by claimant.  This case requires a 
 
         showing that claimant is not employable in the general labor 
 
         market.  After such a showing the burden of proving employability 
 
         shifts to the defendants.  In this case, the testimony of 
 
         claimant revealed that no search for employment was made by 
 
         claimant.  Therefore, claimant has failed to bring forth 
 
         sufficient evidence to invoke the odd-lot doctrine.
 
         
 
         The commencement date for payment of permanent partial disability 
 
         is found to be July 11, 1989 as that is the termination date for 
 
         healing period benefits.  Such benefits shall be paid 
 
         intermittently before and after the right knee healing period.
 
         
 
         The final issue to be discussed concerns claimant's entitlement 
 
         to industrial disability.
 
         
 
         Terri Goodell, personnel manager for Western Home, testified both 
 
         live and by deposition.  Much of her testimony was redundant and 
 
         cumulative when considered with exhibit J14.
 
         
 
         Goodell was a credible witness.  She testified that employer has 
 
         a light duty program which encourages the re-employment of 
 
         workers who are injured on the job.  Goodell testified that she 
 
         wanted to contact claimant so as to make an effort to re-employ. 
 
         Upon calling an insurance carrier representative she was informed 
 
         that the case was in litigation.  Goodell was instructed to make 
 
         an offer of employment in writing to be delivered through the 
 
         parties respective counsel (ex. J6, p. 1).
 
         
 
         It is found that employer made a good faith effort to reemploy 
 
         claimant at a modified or light duty position.  This employer is 
 
         commended for its efforts to accommodate injured employees.
 
         
 
         However, it does not follow that all such jobs offered by Western 
 
         Home were appropriate.  To the contrary, some of the jobs offered 
 
         would have required claimant to drive to work two or three times 
 
         per day so as to obtain pay and benefits equal to what she 
 
         enjoyed prior to June 22, 1988.  It appears that Goodell's 
 
         efforts to re-employ turned into a trial strategy shortly after 
 
         her initial efforts.
 
         
 
         Claimant made no attempt to return to Western Home so as to see 
 
         if she was physically capable of performing the jobs offered. 
 
         Claimant stated numerous times in her deposition that she did not 
 
         want to go back to work.  Her failure to apply for jobs after her 
 
         healing period ended also reveals a lack of motivation to return 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         BOYD V. WESTERN HOME
 
         Page 5
 
         
 
         
 
         to work.  It is found that claimant was not motivated to return 
 
         to work primarily because she wanted to retire.
 
         
 
         Claimant testified that if she had not been injured she would 
 
         probably have worked until age 70.
 
         
 
         Claimant is a high school graduate.  She had little post high 
 
         school education other than completion of a six-month business 
 
         course.
 
         
 
         Claimant's work history started when she was widowed in 1966.  
 
         After that she sold World Books, Avon and worked in a clothing 
 
         store.  In 1971, she went to work for Western Home and continued 
 
         there until her injury of June 22, 1988.  Sustaining such a long 
 
         period of employment with one employer is commendable.
 
         
 
         Factors which reduce industrial disability include employers' 
 
         good faith efforts to offer work, claimant's lack of motivation 
 
         to work and claimant's retirement age.
 
         
 
         Factors which increase industrial disability include claimant's 
 
         severe work restrictions, 13 percent permanent partial impairment 
 
         rating, claimant's good work history and limited education.
 
         
 
         It is understood by the undersigned that a 67-year old claimant 
 
         with only one good arm would generally not be motivated to return 
 
         to work.  It is also understood that jobs for a 67-year old 
 
         claimant with one good arm are few.  However, claimant's 
 
         retirement age reveals a very limited loss of earning capacity.
 
         
 
         In conclusion, the very severe work restrictions imposed by Dr. 
 
         Delbridge along with the other factors mentioned support an award 
 
         of industrial disability.  It is found that claimant has 
 
         sustained a 15 percent industrial disability.
 
         
 
         It should also be noted that the leg injury is compensated 
 
         industrially since it arose out of a body as a whole injury. 
 
         Claimant does not receive an extra 5 percent permanent partial 
 
         disability of the lower extremity.
 
         
 
         Nor should defendants receive any apportionment for the 
 
         preexisting knee impairment.  Claimant was working a full duty 
 
         manual labor job at the time of injury which kept her on her feet 
 
         most of the time.  Prior to the injury, she had no work 
 
         restrictions with respect to the right lower extremity. 
 
         Therefore, claimant had no preexisting industrial disability.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
         Iowa Code section 86.13 states:
 

 
 
 
         BOYD V. WESTERN HOME
 
         Page 6
 
         
 
         
 
              If a delay in commencement or termination of benefits occurs 
 
              without reasonable or probable cause or excuse, the 
 
              industrial commissioner shall award benefits in addition to 
 
              those benefits payable under this chapter, or chapters 85, 
 
              85A, or 85B, up to fifty percent of the amount of benefits 
 
              that were unreasonably delayed or denied.
 
         
 
         Claimant has failed to prove entitlement to penalty benefits 
 
         under Iowa Code section 86.13.
 
         
 
         Section 85.34(1), Code of Iowa, provides that healing period 
 
         benefits are payable to an injured worker who has suffered 
 
         permanent partial disability until (1) he has returned to work; 
 
         (2) is medically capable of returning to substantially similar 
 
         employment; or (3) has achieved maximum medical recovery.  The 
 
         industrial commissioner has recognized that healing period 
 
         benefits can be interrupted or intermittent.  Willis v. Lehigh 
 
         Portland Cement Company, Vol. 2-I, State of Iowa Industrial 
 
         Commissioner Decisions, 485 (1984).
 
         
 
         The end of the healing period occurs at the time when the 
 
         physicians indicate that no further improvement is forthcoming. 
 
         It is not determined by hindsight looking back to find the point 
 
         at which recovery ceased.  Thomas v. William Knudson & Son. Inc., 
 
         394 N.W.2d 124, 126 (Iowa App. 1984); Armstrong Tire & Rubber Co. 
 
         v. Kubli, 312 N.W.2d 60 (Iowa App. 1981).
 
         
 
         Claimant has proven entitlement to an intermittent healing period 
 
         starting June 22, 1988 through July 10, 1989 and March 2, 1990 
 
         through April 23, 1990.
 
         
 
         The right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory. The statute conferring this right can also fix the 
 
         amount of compensation to be paid for different specific 
 
         injuries, and the employee is not entitled to compensation except 
 
         as provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 
 
         268 N.W. 598 (1936)
 
         
 
         "Claimant is not entitled to reimbursement for medical bills 
 
         unless he shows that he paid them from his own funds." See Caylor 
 
         v. Employers Mut. Cas. Co., 337 N.W.2d 890 (Iowa App. 1983)
 
         
 
         Our supreme court has stated many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting 
 
         condition.  Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 
 
         N.W. 35 (1934).  See also Auxier v. Woodward State Hosp. Sch., 
 
         266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 
 
         N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 
 
         704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         BOYD V. WESTERN HOME
 
         Page 7
 
         
 
         
 
         Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United States Gypsum 
 
         Co., 252 Iowa 613, 106 N.W.2d 591 (1960).
 
         
 
         The employer, for all injuries compensable under chapter 85 or 
 
         chapter 85A, shall furnish reasonable surgical, medical, dental, 
 
         osteopathic, chiropractic, podiatric, physical rehabilitation, 
 
         nursing, ambulance and hospital services and supplies; therefore, 
 
         and shall allow reasonable necessary transportation expenses 
 
         incurred from such services.  Iowa Code section 85.27.
 
         
 
         Claimant has proven entitlement to Iowa Code section 85.27 
 
         benefits causally connected to the knee and shoulder injury as 
 
         outlined in the opinion, including mileage expenses.
 
         
 
         Furthermore, defendants have proven entitlement to a credit for 
 
         benefits paid under employer's group plan pursuant to Iowa Code 
 
         section 85.38(2).
 
         
 
         Iowa Code section 85.34(2) provides that compensation for 
 
         permanent partial disability shall begin at the termination of 
 
         the healing period.  Iowa Code section 85.34(2) (u) provides that 
 
         compensation for a nonscheduled or body as a whole injury shall 
 
         be paid in relation to 500 weeks that the disability bears to the 
 
         body as a whole.
 
         
 
         The commencement date for permanent partial disability is found 
 
         to be July 11, 1989 and said benefits shall be paid 
 
         intermittently.
 
         
 
         Under the odd-lot doctrine, which was formally adopted by the 
 
         Iowa Supreme Court in Guyton, a worker becomes an odd-lot 
 
         employee when an injury makes the worker incapable of obtaining 
 
         employment in any well-known branch of the labor market.  An 
 
         odd-lot worker is thus totally disabled if the only services the 
 
         worker can perform are so limited in quality, dependability, or 
 
         quantity that a reasonably stable market for them does not exist.  
 
         Id., citing Lee v. Minneapolis Street Railway Company, 230 
 
         Minn.315, 320, 41 N.W.2d 433, 436 (1950). The rule of odd-lot 
 
         allocates the burden of production of evidence.  If the evidence 
 
         of degree of obvious physical impairment, coupled with other 
 
         facts such as claimant's mental capacity, education, training or 
 
         age, places claimant prima facie in the odd-lot category, the 
 
         burden should be on the employer to show that some kind of 
 
         suitable work is regularly and continuously available to the 
 
         claimant.  Certainly in such cases it should not be enough to 
 
         show that claimant is physically capable of performing light work 
 
         and then round out the case for noncompensable by adding a 
 
         presumption that light work is available.  Guyton, 373 N.W.2d at 
 
         105.
 
         
 
 
 
         When a worker makes a prima facie case of total disability by 
 
         producing substantial evidence that the worker is not employable 
 
         in the competitive labor market, the burden to produce 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         BOYD V. WESTERN HOME
 
         Page 8
 
         
 
         evidence of suitable employment shifts to the employer.  If the 
 
         employer fails to produce such evidence and the trier of fact 
 
         finds the worker falls in the odd-lot category, the worker is 
 
         entitled to a finding of total disability.  Even under the 
 
         odd-lot doctrine, the trier of fact is free to determine the 
 
         weight and credibility of the evidence in determining whether the 
 
         worker's burden of persuasion has been carried.  Only in an 
 
         exceptional case would evidence be sufficiently strong to compel 
 
         a finding of total disability as a matter of law.  Guyton, 373 
 
         N.W.2d at 106.  The court went on to state:
 
         
 
              The commissioner did not in his analysis address any of the 
 
              other factors to be considered in determining industrial 
 
              disability.  Industrial disability means reduced earning 
 
              capacity.  Bodily impairment is merely one factor in a 
 
              gauging industrial disability.  Other factors include the 
 
              worker's age, intelligence, education, qualifications, 
 
              experience, and the effect of the injury on the worker's 
 
              ability to obtain suitable work.  See Doerfer Division of 
 
              CCA v. Nicol, 359 N.W.2d 428, 438 (Iowa 1984).  When the 
 
              combination of factors precludes the worker from obtaining 
 
              regular employment to earn a living, the worker with only a 
 
              partial functional disability has a total disability. See 
 
              McSpadden v. Biq Ben Coal Co, 288 N.W.2d 181, 192 (Iowa 
 
              1980).
 
         
 
         Claimant has failed to prove by a preponderance of the evidence 
 
         that she is not employable in the competitive labor market.  
 
         Claimant has failed to prove that she is an odd-lot employee.
 
         
 
         Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson, 
 
         255 Iowa 1112, 125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 
 
         253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
         A finding of impairment to the body as a whole found by a medical 
 
         evaluator does not equate to industrial disability.  This is so 
 
         as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
         Factors to be considered in determining industrial disability 
 
         include the employee's medical condition prior to the
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         BOYD V. WESTERN HOME
 
         Page 9
 
         
 
         
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant. 
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
         There are no weighting guidelines that indicate how each of the 
 
         factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc. 
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability. 
 
         See Peterson v. Truck Haven Cafe Inc., (Appeal Decision, February 
 
         28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 
 
         26, 1985).
 
         
 
         An employee is not entitled to recover for the results of a 
 
         preexisting injury or disease but can recover for an aggravation 
 
         thereof which resulted in the disability found to exist.  Olson, 
 
         255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 
 
         N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960). 
 
         See also Barz, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist, 218 
 
         Iowa 724, 254 N.W. 35 (1934).
 
         
 
         Also to be considered is the following decision of this agency:
 
         
 
         Although the Iowa Supreme Court has indicated that age is a 
 
         factor to be considered in determining industrial disability, it 
 
         does not indicate what the effect of young age, middle age or 
 
         older age is supposed to be.  Obviously, it is a factor that 
 
         cannot be considered separately but must be considered in 
 
         conjunction with the other factors.  For example, the effects of 
 
         a minor back injury upon a young person with extensive formal 
 
         education would limit the scope of his potential employment-less 
 
         than that of a middle-aged person with no formal education.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         BOYD V. WESTERN HOME
 
         Page 10
 
         
 
         
 
         How to apply age as a factor when a person is nearing the end of 
 
         his normal working life is a dilemma.  When considering the age 
 
         factor, it is apparent that the scope of employment for which 
 
         claimant is fitted is narrowed simply because of the reluctance 
 
         of employers to initially employ persons of advanced years.  
 
         Therefore, the advanced age alone without the combination of an 
 
         injury is limiting.  Lack of education or at least a showing of 
 
         diminished educability is in and of itself also a limiting factor 
 
         for entry into many fields of employment ...
 
         
 
         The Michigan Supreme Court has stated regarding retirement:
 
         
 
         Compensation benefits are geared to weekly wage loss.  It is 
 
         consistent with the concept of tying weekly compensation benefits 
 
         to weekly wage loss to factor into the benefit program the 
 
         statistically established generalization that workers, even if 
 
         not disabled, retire between 60 and 75 and no longer earn weekly 
 
         wages.  There is no discrimination against disabled workers over 
 
         65 in taking into account the wage loss they would 
 
         "presumptively" suffer due to normal retirement.  Cruz v. 
 
         Chevrolet Grey Iron Div. of Gen. Motors, 247 N.W.2d 764, 775 
 
         (Mich. 1976).
 
         
 
         It is held that the approaching of later years when it can be 
 
         anticipated that under normal circumstances a worker would be 
 
         retiring is, without some clear indication to the contrary, a 
 
         factor which can be considered in determining the loss of earning 
 
         capacity or industrial disability which is causally related to 
 
         the injury.
 
         
 
         Christoper B. Becke vs. Turner-Busch. Inc., and American Mutual 
 
         Liability Insurance Company, Thirtyfourth Biennial Report 34, 36.
 
         
 
         Upon considering all the material factors, it is found that the 
 
         evidence in this case supports an award of 15 percent permanent 
 
         partial disability which entitles the claimant to recover 75 
 
         weeks of benefits under Iowa Code section 85.34(2)"u", as a 
 
         result of the left shoulder and right knee injury.
 
         
 
                                      ORDER
 
         
 
         THEREFORE, IT IS ORDERED:
 
         
 
         That defendants pay claimant sixty-two and three-sevenths (62 
 
         3/7) weeks of compensation for healing period at the rate of 
 
         eight-six and 04/100 dollars ($86.04) per week for the periods 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         BOYD V. WESTERN HOME
 
         Page 11
 
         
 
         
 
         June 22, 1988 through July 10, 1989 and March 2, 1990 through 
 
         April 23, 1990.
 
         
 
         It is therefore ordered that defendants pay claimant's Iowa Code 
 
         section 85.27 benefits which are causally connected to the knee 
 
         and shoulder injuries, including mileage expenses.
 
         
 
         It is therefore ordered that defendants receive credit under Iowa 
 
         Code section 85.38(2).
 
         
 
         It is therefore ordered the defendants pay claimant seventyfive 
 
         (75) weeks of permanent partial disability at the rate of 
 
         eight-six and 04/100 dollars ($86.04) per week commencing July 
 
         11, 1989.  payments are to be made intermittantly between healing 
 
         periods.
 
         
 
         It is further ordered that defendants pay claimant interest 
 
         pursuant to Iowa Code section 85.30 from the date each weekly 
 
         payment came due until the date of actual payment.
 
         
 
         It is further ordered that defendants shall receive credit for 
 
         benefits previously paid.
 
         
 
         It is further ordered that the costs of this action are assessed 
 
         against defendants pursuant to rule 343 IAC 4.33.
 
         
 
         It is further ordered that defendants file claim activity reports 
 
         as requested by this agency pursuant to rule 343 IAC 3.1.
 
         
 
         Signed and filed this______ day of January, 1991.
 
         
 
         
 
                                       __________________________________
 
                                       MARLIN D. MORMANN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Thomas L. Staack
 
         Mr. J. Scott Bayne
 
         Attorneys at Law
 
         PO Box 810
 
         Waterloo, Iowa 50704
 
         
 
         Mr. J. Richard Johnson
 
         Attorney at Law
 
         PO Box 607
 
         Cedar Rapids, Iowa 52406
 
         
 
 
         
 
         Page   1
 
         
 
         
 
         
 
                   54000 51802 51701 54100 51803 52500
 
                   Filed January 25, 1991
 
                   Marlon D. Mormann
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
                   :
 
         LOIS H. BOYD,  :
 
                   :
 
              Claimant, :
 
                   :
 
         vs.       :
 
                   :      File No.  890207
 
         WESTERN HOME,  :
 
                   :  A R B I T R A T I O N
 
              Employer, :
 
                   :      D E C I S I O N
 
         and       :
 
                   :
 
         BITUMINOUS INSURANCE,    :
 
                   :
 
              Insurance Carrier,  :
 
              Defendants.    :
 
         ___________________________________________________________
 
         
 
         5400
 
         Claimant failed to prove penalty due to question over causation.
 
         
 
         51802
 
         Healing period entitlement proven.
 
         
 
         51701
 
         Defendants allowed credit for benefits paid under group plan.
 
         
 
         54100
 
         Odd-lot not proven due to claimant's failure to apply for work.
 
         
 
         51803
 
         A 67-year old claimant with body as a whole impairment as a 
 
         result of shoulder and knee injuries who lacked motivation to 
 
         return to work was awarded 15 percent permanent partial 
 
         disability.
 
         
 
         52500
 
         Claimant entitled to medical benefits.
 
         
 
         
 
 
         
 
         
 
         
 
         
 
                  
 
         
 
         
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         JAMES W. PATTON,              :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :
 
         ROBERTS DAIRY COMPANY,        :         File Nos. 890255
 
                                       :                   943984
 
              Employer,                :
 
                                       :           A P P E A L
 
         and                           :
 
                                       :         D E C I S I O N
 
         NATIONAL UNION FIRE           :
 
         INSURANCE CO.,                :
 
                                       :
 
              Insurance Carrier,       :
 
                                       :
 
         and                           :
 
                                       :
 
         SECOND INJURY FUND OF IOWA,   :
 
                                       :
 
              Defendants.              :
 
         ____________________________________________________________
 
         
 
         
 
              The record, including the transcript of the hearing before 
 
         the deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.
 
         
 
                                      ISSUES
 
         
 
              Second Injury Fund states the following issues on appeal:
 
         
 
              1. The deputy industrial commissioner erred in 
 
                 effectively amending claimant's petition after the 
 
                 hearing and without notice to the parties.
 
         
 
              2. The deputy industrial commissioner erred in finding 
 
                 that claimant's knee injuries we         of age at hearing and 49 years of age on December 12, 1989.  
 
         Although Mr. Patton indicated in a recorded statement that he had 
 
         completed high school and testified in his deposition that he 
 
         finished tenth grade, his trial testimony was that he was 
 
         suspended during tenth grade and did not finish the academic 
 
         year.  That testimony is accepted as accurate.  Claimant appeared 
 
         by demeanor to be of at least average intelligence.
 
         
 
              While attending school in rural Louisiana, claimant worked 
 
         on a dairy farm beginning at age 12.  Since then, he has worked 
 
         as a food preparation worker in a cafeteria, briefly as a general 
 
         construction laborer, and in a car wash.  He took work with Flynn 
 
         Dairy in Des Moines on January 1, 1960.  The name (and presumably 
 
         ownership) of the dairy later changed to Prairie Farms Dairy and 
 
         now to Roberts Dairy Company, but claimant continued to work in 
 
         the same location for 30 years.
 
         
 
              Mr. Patton began as a janitor, working in this job for 1-2 
 
         years.  He then worked for some two years washing milk cans, 
 
         became an order filler (moving product around in the plant) and, 
 
         in the late 1960s, became a "bottle" filler (actually, a milk 
 
         carton filler).  Claimant continued to operate various filling 
 
         machines in this job classification until his retirement.
 
         
 
              For the first 10 or 12 years in this job, claimant released 
 
         cases of product to the conveyor system by frequently pressing a 
 
         lever with either knee.  Further strain accrued to the knees in 
 
         that he was required to climb two steps every few minutes to feed 
 
         cardboard cartons into the machine.  When new machines were 
 
         installed in approximately the early 1980s, claimant no longer 
 
         pressed a knee lever, but still did substantial climbing around 
 
         the machines to feed bottle caps and clear machinery jams.  
 
         Depending on how his machine was operating on a given shift, jams 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
              
 
               
 
         might occur every five minutes or only every thirty minutes.
 
         
 
              As it happens, claimant has suffered from problems in both 
 
         knees for many years, treating with several orthopaedic surgeons 
 
         of Orthopaedic Associates, P.C., and Iowa Orthopaedic Center, 
 
         P.C.  A chart note of Marvin Dubansky, M.D., as early as December 
 
         21, 1972, referred to pain behind the knees when claimant hurt 
 
         himself lifting plastic at work.  Claimant testified himself that 
 
         he had intermittent problems in both knees since the 1960s.  
 
         Claimant had knee and back problems in 1973 following a motor 
 
         vehicle accident.  Sidney Robinow, M.D., also of Orthopaedic 
 
         Associates, charted fracture of the right patella on May 27, 
 
         1974, and applied a cast.  After claimant returned to work in 
 
         August, the knee began to swell on the second day (chart notes of 
 
         August 13, 1974).  He further injured his right knee in a fall 
 
         while playing basketball in September 1974.  Chart notes prepared 
 
         by physician "M" included in Dr. Robinow's records reflect that 
 
         claimant sustained an injury at work (Flynn Dairy) on June 7, 
 
         1979, when he tripped over a meat case and fell on the left wrist 
 
         and right knee.  Claimant was treated with a knee immobilizer and 
 
         eventually diagnosed by Dr. Robinow as suffering post-traumatic 
 
         prepatellar bursitis of the right knee.  Dr. Robinow reported on 
 
         February 27, 1980, that claimant complained of aching in the 
 
         right knee, trouble with stair climbing and a tendency for the 
 
         knee to "give way" at times.
 
         
 
              Claimant suffered an injury on August 27, 1987, when a box 
 
         of milk cartons fell from a stack; he jammed his thumb attempting 
 
         to catch it.  Marshall Flapan, M.D., also of Orthopaedic 
 
         Associates, P.C., treated claimant and has been his primary 
 
         treating orthopedist ever since.  Initial assessment was of a 
 
         rupture of the ulnar collateral ligament, right first metacarpal 
 
         phalangeal joint in the right thumb.  Synovitis of the right 
 
         wrist was later added to that assessment.  By November 23, 1987, 
 
         claimant was deemed to have fully recovered and he was released 
 
         to work full time without restrictions.  However, Mr. Patton 
 
         continued to complain of symptoms.  On February 15, 1988, Dr. 
 
         Flapan diagnosed synovitis of the hand and charted a lack of full 
 
         range of motion at the interphalangeal joint of the thumb.  By 
 
         April 4, the assessment was of recovered synovitis of the right 
 
         wrist and status post-rupture of the ulnar collateral ligament of 
 
         the right first metacarpal phalangeal joint.  On January 13, 
 
         1989, Dr. Flapan assessed an impairment rating of five percent of 
 
         the upper extremity as a result of this injury.
 
         
 
              Claimant was also seen for evaluation on July 17, 1991, by 
 
         Faheam Cannon, M.D., in Louisiana.  Dr. Cannon consults with the 
 
         Orthopaedic Clinic of Monroe, which limits practice to 
 
         orthopaedic surgery.  Examination of the right hand revealed a 
 
         loss of flexion at the interphalangeal joint of the right thumb 
 
         and tenderness at the junction of the thumb with the carpal and 
 
         metacarpal structures.  Pinch effort of the (dominant) right hand 
 
         was weaker than the left due to impaired function in the IP 
 

 
         
 
         Page   4
 
         
 
         
 
               
 
              
 
         joint.  Radiographic views of the right wrist and thumb revealed 
 
         an old healed avulsion type fracture of the articular surface of 
 
         the distal pole of the proximal phalanx to the thumb with the 
 
         fragment slightly displaced distalward, but there appeared to be 
 
         no joint changes.  That fracture was described as contributing to 
 
         the loss of flexion mobility in the IP joint.  Dr. Cannon felt 
 
         that handling, fingering and pushing/pulling would be affected by 
 
         the impairment of the thumb.
 
         
 
              Claimant was also seen for a disability evaluation by Scott 
 
         K. McClelland, M.D., on February 6, 1991.  Dr. McClelland is a 
 
         diplomat of the American Board of Orthopaedic Surgery and wrote 
 
         of decreased motion of the right thumb in both the metacarpal 
 
         phalangeal and interphalangeal joints.  He felt claimant would be 
 
         unable to do any strenuous lifting as a result of the decreased 
 
         motion of the right thumb.
 
         
 
              Notwithstanding Dr. Flapan's impairment rating to the "upper 
 
         extremity," the medical evidence shows that claimant's 1987 
 
         injury was to the thumb as opposed to his hand or arm.  Limited 
 
         range of motion and the healed fracture are distal to the hand.  
 
         Even though claimant makes complaint of continued hand, wrist and 
 
         arm symptoms, the medical evidence does not show that permanent 
 
         impairment extends beyond the thumb.
 
         
 
              The June 2, 1988, injury to claimant's left knee occurred 
 
         while he was helping to unload 50-gallon drums of lubricant.  
 
         Claimant felt a pulling sensation in the left knee, and the joint 
 
         became swollen the next day.
 
         
 
              Dr. Flapan's assessment on June 6 was of internal 
 
         derangement of the left knee with synovitis.  On that diagnosis, 
 
         Dr. Flapan undertook arthroscopy of the left knee with shaving of 
 
         the undersurface of the patella.  Post-surgical diagnosis was of 
 
         chondromalacia of the left patella.  After claimant returned to 
 
         work in September of that year, he still suffered symptoms in the 
 
         knee, especially with use.  He also noticed increased problems 
 
         with his right knee, which he attributes to favoring the left leg 
 
         (as he still does).  Claimant complained of his bilateral knee 
 
         symptoms to his supervisors, Charles Allen and Clell Warren, but 
 
         did not make clear to them that he alleged right knee 
 
         symptomatology was causally related to the job.  Dr. Flapan's 
 
         chart notes of November 10, 1988, however, reflect that claimant 
 
         returned after now injuring his right knee, complaining that 
 
         while at work he was squatting and had difficulty getting up and 
 
         down since that time.  X-ray views of the right knee demonstrated 
 
         a bipartite patella with fragmentation of the superior lateral 
 
         pole.  Assessment was of right patellar chondromalacia and 
 
         preexisting bipartite status contributing to that.  Chart notes 
 
         of December 1, 1988, reflect that claimant "continues to have 
 
         discomfort with achiness in both of his knees.  He is working at 
 
         the dairy going up and down stairs, which seems to aggravate his 
 
         problem."  Assessment then was of bilateral chondromalacia, 
 

 
         
 
         Page   5
 
         
 
               
 
               
 
               
 
         symptomatic.  Chart notes of Dr. Flapan continue to make 
 
         reference to the work-relatedness of claimant's right knee 
 
         symptoms.  In particular, a note of March 30, 1989, records:
 
         
 
              Mr. Patton continues to have recurrent discomfort in 
 
              both of his knees.  This is associates [sic] with his 
 
              strenuous work at the dairy with climbing, squatting 
 
              and deep knee bending which is required of his 
 
              occupation.  Since he has been doing this, he has had 
 
              recurrence of his pain in his knee.
 
         
 
              Dr. Flapan saw claimant on September 14, 1989, for the last 
 
         time before he left work.  Claimant was allowed to continue to 
 
         work "at light duty."  Actually, claimant operated a machine 
 
         during his last months that required somewhat less demand on his 
 
         knees, but the work was not truly light duty.
 
         
 
              Claimant's union affiliation provided for early retirement 
 
         following 30 years of service.  Claimant had made it clear to his 
 
         coworkers for years that he intended to retire when he reached 30 
 
         years.  He did so on the very first day possible.  This was 
 
         December 12, 1989, which he now contends is the date of injury in 
 
         file number 943984.  He was actually on the payroll thereafter, 
 
         but used accumulated vacation time to take him to the 30-year 
 
         mark.  Mr. Patton asserts that he was barely able to continue 
 
         working through his pain until this goal was reached, and that he 
 
         would have had trouble working even one additional week (although 
 
         he certainly would have tried, had it been necessary for pension 
 
         entitlement).
 
         
 
              That pension, starting at age 49, pays $12,000 per year, 
 
         basically half of what Mr. Patton was earning when he retired.  
 
         He cannot accept any other job, else his pension be lost.  
 
         Accordingly, he has not sought work since leaving employment with 
 
         Roberts Dairy and clearly has no present intention of ever 
 
         working again.
 
         
 
              On February 23, 1990, Dr. Flapan specified by letter that 
 
         claimant's "condition" resulted from work-related activities 
 
         while employed at Prairie Farms Dairy (now Roberts Dairy 
 
         Company).  "Condition" seems most properly interpreted as 
 
         referring to claimant's bilateral chondromalacia.  Dr. Flapan 
 
         noted there might be some element of preexisting condition, but 
 
         this had "certainly been aggravated by his work."  In a letter 
 
         dated April 26, 1990, Dr. Flapan specified that claimant's 
 
         bilateral knee problems were a direct result of the strenuous 
 
         activity and abuse he had given them at work, including bending, 
 
         squatting, stooping and lifting repeatedly during his 30 years at 
 
         the dairy.  Dr. Flapan further opined that this condition is 
 
         permanent.  On May 22, 1990, Dr. Flapan rated claimant as having 
 
         sustained a permanent partial impairment to each lower extremity 
 
         of 8 percent, which he went on to add constituted a total body 
 
         impairment of 16 percent.  However, he corrected the "total body" 
 
         impairment rating to 6 percent in a letter dated June 20, 1991, 
 

 
         
 
         Page   6
 
         
 
         
 
                
 
         
 
         based on the same impairment ratings of 8 percent of each lower 
 
         extremity secondary to work-related chondromalacia of the 
 
         patella.  This, incidentally, is consistent with the conversion 
 
         charts and combined value charts published by the American 
 
         Medical Association in its Guides to the Evaluation of Permanent 
 
         Impairment, Third Edition.
 
         
 
              Dr. Flapan apparently last saw claimant on May 7, 1991, at 
 
         which time he reported complaints of pain and discomfort in both 
 
         knees.  Plan was to "restrict him up and down on his legs."  
 
         Although claimant testified that Dr. Flapan advised him to change 
 
         jobs and (in his deposition of April 24, 1991) of restrictions 
 
         against squatting, bending, stooping or "anything like that," Dr. 
 
         Flapan's records do not confirm claimant's recollection.
 
         
 
              It will be recalled that claimant was evaluated by Dr. 
 
         Cannon on July 17, 1991.  In Dr. Cannon's view, radiographic 
 
         examination revealed no actual abnormality of the knees, but he 
 
         diagnosed osteochondritis dissecans, "which is the deterioration 
 
         of the articular cartilage of both knee joints."  Dr. Cannon 
 
         noted that claimant would encounter difficulty in standing, 
 
         climbing or the like, and assessed impairment in several 
 
         respects.  Claimant should be limited to lifting 10-15 pounds 
 
         occasionally, and 5-10 pounds frequently; he should be limited 
 
         from standing or walking 4-6 hours "Total (At any given time)" 
 
         (whatever that means) and 2-4 hours continuously; should be 
 
         limited to occasional ("From very little to 1/3 of an 8 hour 
 
         workday") climbing, balancing, stooping, crouching, kneeling, and 
 
         crawling; and, environmental restrictions included heights, 
 
         moving machinery and vibration.
 
         
 
              It will further be recalled that Dr. McClelland examined 
 
         claimant.  Based on his impression of bilateral chondromalacia of 
 
         the patellae, Dr. McClelland believed claimant would be 
 
         functionally limited to sedentary to light activities.*****
 
         
 
                                CONCLUSIONS OF LAW
 
                                        
 
                                File Number 890255
 
                            Injury Date:  June 2, 1988
 
         
 
              Claimant, Roberts Dairy Company, and National Union Fire 
 
         Insurance Company have stipulated to a work injury to the left 
 
         knee on June 2, 1988.  Further, those parties have stipulated to 
 
         the extent of claimant's entitlement to temporary and permanent 
 
         disability.  Although compensation was tendered only at the 
 
         eleventh hour before hearing, penalty benefits were not presented 
 
         as an issue.  Mr. Patton's claim for medical expenses relates to 
 
her claimant sustained an injury (or 
 
         occupational disease) arising out of and in the course of his 
 
         employment on December 19, 1989.  Claimant alleges damage to both 
 
         knees, but the evidence does not show additional damage to the 
 
         left knee beyond the injury of June 2, 1988.  Further discussion 
 
         relates to the right knee.
 
         
 
              The words "arising out of" refer to the course or source of 
 
         the injury.  McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).  
 
         This requirement is satisfied by showing a causal relationship 
 
         between the employment and the injury.  Sheerin v. Holin Co., 380 
 
         N.W.2d 415 (Iowa 1986).
 
         
 
              Dr. Flapan, the treating physician and surgeon, has 
 
         specified that claimant's (bilateral) chondromalacia was 
 
         aggravated by employment.  If a preexisting condition is 
 
         aggravated, accelerated, worsened or lighted up by employment 
 
         such that it results in disability, compensation is appropriate.  
 
         Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 
 
         (1962).  No contrary medical opinion exists of record.  Claimant 
 
         has met his burden of proof in establishing an injury arising out 
 
         of and in the course of his employment to his right knee and 
 
         resulting disability.
 
         
 
              Claimant seeks no additional compensation for temporary 
 
         total disability or healing period.  The parties dispute the 
 
         nature and extent of the injury, particularly whether it is a 
 
         scheduled member disability or one to be compensated 
 
         industrially.
 

 
         
 
         Page   8
 
         
 
         
 
                
 
               
 
         
 
              *****
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial dis
 
         ability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa 
 
         Industrial Commissioner Decisions 529 (App. Decn., March 26, 
 
         1985); Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of 
 

 
         
 
         Page   9
 
         
 
                 
 
                
 
         
 
         Iowa Industrial Commissioner Decisions 654 (App. Decn., February 
 
         28, 1985).
 
         
 
              Although claimant's industrial disability is substantial, he 
 
         has not proved that it is total.  He was never medically advised 
 
         to leave work with Roberts Dairy Company.  The record shows that 
 
         he had long been planning to retire at the earliest opportunity 
 
         for pension purposes and this was public knowledge.  At the time 
 
         he left work, the only medical restriction of record was for 
 
         "light duty" work.  While it is unclear exactly what this concept 
 
         was meant to entail, it is undeniably the case that claimant was 
 
  nety days from the date of the 
 
              occurrence of the injury, or unless the employee or 
 
              someone on the employee's behalf or a dependent or 
 
              someone on the dependent's behalf shall give notice 
 
              thereof to the employer within ninety days from the 
 
              date of the occurrence of the injury, no compensation 
 
              shall be allowed.
 
         
 
              This issue raises the question of whether claimant has 
 
         alleged a correct injury date.  In cases of cumulative injury, 
 
         the injury date is customarily held to be occasioned when, due to 
 

 
         
 
         Page  10
 
         
 
         
 
               
 
               
 
         pain or physical inability, claimant is no longer able to work.  
 
         McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).  
 
         The actual date of injury can be of great significance in many 
 
         respects, including notice defenses, limitations defenses and 
 
         calculation of rate.  Yet, if McKeever is blindly applied in all 
 
         cases, bizarre and unfair results are possible.  For example, one 
 
         might postulate a worker who suffers a severe cumulative back 
 
         injury such as to dramatically diminish earning capacity.  If it 
 
         be further postulated that the worker continued to show up for 
 
         work every day despite pain, and if the defendant employer were 
 
         to keep the individual employed, perhaps at a "make work" job, 
 
         the individual might die of an unrelated cause or the employer 
 
         may go out of business many years later without ever accruing an 
 
         injury date under McKeever.  It has frequently been held that an 
 
         individual may have loss of earning capacity without loss of 
 
         actual earnings, where the employer is able to continue providing 
 
         work of some kind.  It has also recently been held that the 
 
         McKeever method is not exclusive; leaving work due to the pain 
 
         or discomfort of a cumulative injury is not necessarily a 
 
         prerequisite to finding a cumulative injury.  Scheuermann v. 
 
         Oscar Mayer Foods Corp., File No. 773553 (App. Decn., December 
 
         20, 1991).
 
         
 
              In this case, it can be argued that the actual date of 
 
         injury is January 18, 1989, because Dr. Flapan's chart notes of 
 
         January 23 reflect that claimant left work on that day "because 
 
         of increasing discomfort in both of his knees, worse on the left 
 
         than on the right."  However, even choosing this early date as 
 
         the appropriate date of injury for notice purposes avails 
 
         defendants naught.  Chart notes relating to both knees on 
 
         November 10, 1988 ("While at work, he was squatting and he's had 
 
         difficulty getting up and down since that time") and December 1, 
 
         1988 ("He is working at the dairy going up and down stairs, which 
 
         seems to aggravate his problem") put defendants on actual notice 
 
         that claimant was developing a likely work-related injury.  
 
         Knowledge of an authorized treating physician has been ruled 
 
         knowledge of the employer.  Hammerand v. Dubuque Packing Co., 
 
         File No. 696920 (Review-reopening Decn., November 17, 1989).  It 
 
         is so held.  Dr. Flapan had just finished treating claimant 
 
         surgically to the left knee and was the obvious person to whom to 
 
         turn when right knee symptoms appeared upon a return to work.  
 
         Dr. Flapan and his associates have treated claimant consistently 
 
         for work injuries, including the jammed thumb incident in 1987.  
 
         Defendants did not advise claimant that authorization to visit 
 
         Dr. Flapan had been withdrawn.  It is not significant that notice 
 
         predated the potential "legal" date of injury, since assignment 
 
         of an injury date in cases of cumulative injury can be, in some 
 
         cases, as much an art as a science.  Defendants were on 
 
         sufficient notice to investigate claimed injury to the right knee 
 
         in 1988.
 

 
         
 
         Page  11
 
         
 
         
 
         
 
               
 
               
 
              What then is the correct injury date?  Claimant apparently 
 
         missed time in January 1989, but the record does not permit 
 
         determination of how many days were missed.  For purposes of the 
 
         discovery rule, missing more than three days of work has been 
 
         held to put claimant on notice that his work-related injury is 
 
         serious.  Babe v. Greyhound Lines, Inc., File No. 706132 (App. 
 
         Decn., February 29, 1988).  But, it cannot be told from this 
 
         record whether claimant missed more than three days at that time.  
 
         The most reasonable alternative is the date alleged by claimant, 
 
         his retirement date of December 19, 1989.  January 1989 seems 
 
         unduly artificial, since claimant continued to work for nearly 
 
         another year.
 
         
 
              [Defendant employer asserts that notice received via its 
 
         authorized physician that was hired to treat a different body 
 
         part affected does not constitute adequate notice under Iowa Code 
 
         85.23.  This argument is rejected, in that it matters little 
 
         which body part the physician was retained to treat, as long as 
 
         the reports received by the employer put the employer on notice 
 
         of the knee injury in question.  
 
         
 
              The defendant employer correctly urges that the notice from 
 
         the physician must not only show an injury, but must also 
 
         indicate the injury or condition is work related.  However, a 
 
         review of the medical evidence indicates that the employer was on 
 
         notice not only of the injury, but also that it was caused by 
 
         claimant's work, even prior to claimant leaving work due to his 
 
         knee problems.  Thus, defendants did have proper notice of 
 
         claimant's injury under Iowa Code section 85.23.
 
         
 
              It is not inappropriate to consider claimant's knee injury 
 
         as a "first" injury for purposes of second injury fund liability.  
 
         The statute, Iowa Code 85.64, does not speak in terms of a 
 
         "first" injury, but rather refers to a claimant who has 
 
         previously lost the use of a member.  If claimant has had a prior 
 
         loss that meets the requirements of section 85.64, he is entitled 
 
         to second injury fund benefits regardless of whether he 
 
         originally pled the knee injury as the "first" loss.  Defendant 
 
         Second Injury Fund of Iowa has acknowledged in its appeal brief 
 
         not only that it was well aware of both knee injuries, but also 
 
         asserts that the fund made it a point to be aware of all of 
 
         claimant's prior injuries.  Thus, the fund was not caught by 
 
         surprise, and was aware that claimant had a prior injury that 
 
         might well qualify as a prior loss under Iowa Code 85.64.  The 
 
         fund cannot seek to deny benefits to a claimant who otherwise 
 
         meets the requirements of 85.64 merely because a different theory 
 
         was advanced by claimant, or because of a technical variation in 
 
         pleadings.  Workers' compensation proceedings are not governed by 
 
         technical rules of pleading.  For example, a deputy may find a 
 
         cumulative injury and establish a cumulative injury date even 
 
         though the claimant has relied on a traumatic injury theory and a 
 
         traumatic injury date in his pleadings.  Johnson v. George A. 
 

 
         
 
         Page  12
 
         
 
         
 
         
 
                
 
         Hormel & Company, Appeal Decision, June 21, 1988.   A claimant 
 
         has been awarded benefits for an injury to a body part that was 
 
         not mentioned in the pleadings whthat a qualifying prior loss need not be compensable, 
 
         and can even be congenital.  Shank v. Mercy Hosp. Medical 
 
         Center., File No. 719627 (App. Decn., August 28, 1989).
 
         
 
              Where the second injury is limited to a scheduled member, as 
 
         here, the employer's liability is limited to the schedule and the 
 
         Fund is liable for the cumulative effect of the scheduled 
 
         injuries resulting in industrial disability.  Second Injury Fund 
 
         of Iowa v. Braden, 459 N.W.2d 467 (Iowa 1990).  The Fund is also 
 
         entitled to credit for the functional impairment assigned to 
 
         previous functional disability.  Id.  Where claimant has more 
 
         than one prior loss, the Fund is entitled to a credit for all 
 
         prior losses [that give rise to fund liability.]  Shank v. Mercy 
 
         Hosp. Medical Center., file number 719627 (App. Decn., August 28, 
 
         1989).
 
         
 
              [The deputy industrial commissioner correctly applied the 
 
         formula contemplated by Iowa Code section 85.64 by subtracting 
 
         from claimant's current disability the number of weeks 
 

 
         
 
         Page  13
 
         
 
         
 
               
 
                
 
         represented by claimant's prior loss of the knee and the 
 
         claimant's current loss of the other knee (to be compensated by 
 
         the employer) to ascertain the liability of the Second Injury 
 
         Fund.  However, 12.5 weeks for a prior loss of claimant's thumb 
 
         was also deducted.  This loss was found not to qualify as a prior 
 
         loss for purposes of second injury fund entitlement, as the thumb 
 
         is not mentioned in Iowa Code section 85.64.  Iowa Code section 
 
         85.64 states:
 
         
 
                If an employee who has previously lost, or lost the 
 
              use of, one hand, one arm, one foot, one leg, or one 
 
              eye, becomes permanently disabled by a compensable 
 
              injury which has resulted in the loss of or loss of use 
 
              of another such member or organ, the employer shall be 
 
              liable only for the degree of disability which would 
 
              have resulted from the latter injury if there had been 
 
              no pre-existing disability.  In addition to such 
 
              compensation, and after the expiration of the full 
 
              period provided by law for the payments thereof by the 
 
              employer, the employee shall be paid out of the "Second 
 
              Injury Fund" created by this division the remainder of 
 
              such compensation as would be payable for the degree of 
 
              permanent disability involved after first deducting 
 
              from such remainder the compensable value of the 
 
              previously lost member or organ.
 
         
 
         (Emphasis added)
 
         
 
              Claimant's thumb injury did not serve as a prior loss giving 
 
         rise to second injury fund liability, and thus no part of the 
 
         present awarded disability contemplates the injury to the thumb.  
 
         The award against the fund is for disability as a result of this 
 
         injury when considered in conjunction with the prior loss 
 
         mentioned in 85.64.  The prior loss to the thumb is not part of 
 
         the second injury fund calculation.]
 
         
 
              Factors to be considered in determining industrial 
 
         disability (in short, loss of earning capacity) have been set 
 
         forth above.  Claimant's age and educational limitations are such 
 
         as to render him a less than ideal candidate for employment.  
 
         Even more significantly, restrictions against prolonged standing 
 
         and walking disqualify him for many of the jobs for which he 
 
         might otherwise be qualified.  Dr. Cannon also recommended 
 
         restrictions against lifting, climbing, balancing, stooping, 
 
         crouching, kneeling and crawling at the stipulated rate of two 
 
         hundred eighty and 80/100 dollars ($280.80) per week commencing 
 
         December 19, 1989.
 
         
 
              That claimant's costs are assessed to defendants Roberts 
 
         Dairy Company and National Union Fire Insurance Company pursuant 
 
         to rule 343 IAC 4.33.  The Second Injury Fund of Iowa shall bear 
 
         its own costs.
 
         
 
              That Second Injury Fund of Iowa, claimant and defendants, 
 
         Roberts Dairy Company and National Union Fire Insurance Company, 
 
         shall share equally the costs of the appeal including 
 
         transcription of the hearing.  
 
         
 
              That defendants shall file claim activity reports as 
 
         requested by this agency pursuant to rule 343 IAC 3.1.
 
         
 
         
 
              Signed and filed this ____ day of May, 1993.
 
         
 
         
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
         Copies To:
 

 
         
 
         Page  15
 
         
 
         
 
         
 
                       
 
                        
 
         Mr. Thomas J. Logan
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa  50312
 
         
 
         Mr. Michael R. Hoffmann
 
         Attorney at Law
 
         Breakwater Building
 
         3708 75th Street
 
         Des Moines, Iowa  50322
 
         
 
         Ms. Joanne Moeller
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Building
 
         Des Moines, Iowa  50319
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                      1402.60; 2203; 2209; 2401;
 
                                      2803; 3202; 3203
 
                                      Filed May 27, 1993
 
                                      BYRON K. ORTON
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         JAMES W. PATTON,              :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :
 
         ROBERTS DAIRY COMPANY,        :         File Nos. 890255
 
                                       :                   943984
 
              Employer,                :
 
                                       :           A P P E A L
 
         and                           :
 
                                       :         D E C I S I O N
 
         NATIONAL UNION FIRE           :
 
         INSURANCE CO.,                :
 
                                       :
 
              Insurance Carrier,       :
 
                                       :
 
         and                           :
 
                                       :
 
         SECOND INJURY FUND OF IOWA,   :
 
                                       :
 
              Defendants.              :
 
         ____________________________________________________________
 
         
 
         
 
         2203; 2209
 
         Bilateral chondromalacia of the patellae held cumulative injury, 
 
         not occupational disease.
 
         
 
         
 
         3202
 
         Claimant alleged prior loss to hand and sought benefits from 
 
         Second Injury Fund for each of two knee injuries.  Loss to "hand" 
 
         was not qualifying because it was limited to the thumb.  However, 
 
         first knee injury was qualifying prior loss in second case, even 
 
         though not pleaded by claimant.  Second Injury Fund was a 
 
         defendant in each case, and was not prejudiced.
 
         
 
         
 
         2209; 2401; 2803
 
         Injury date in cumulative trauma case held to be date of 
 
         claimant's retirement.  Prior chart notes of authorized physician 
 
         held to be actual notice to defendants.
 
         
 

 
         
 
 
 
             
 
 
 
               
 
         1402.60
 
         Claimant was denied medical expenses where he failed to prove 
 
         reasonableness of charges.
 
         
 
         
 
         3203
 
         In calculating liability of second injury fund, deduction for 
 
         current loss and for prior loss that gave rise to fund liability 
 
         was appropriate, but additional deduction for prior loss that did 
 
         not serve as a basis for fund liability was not proper.  
 
         Claimant's prior loss of a thumb did not give rise to fund 
 
         liability under Iowa Code 85.64, and thus should not have been 
 
         subtracted from the fund's liability.